Combating of Rape Act, No.

8 of 2000
To provide for the combating of rape; to prescribe minimum sentences for rape; to provide
for the abolition of the rule that a boy under the age of fourteen years is presumed
incapable of sexual intercourse; to provide for the modification of certain rules of evidence
applicable to offences of a sexual or indecent nature; to impose special duties on
prosecutors in criminal proceedings relating to sexual offences; to impose special duties on
members of the police in respect of certain bail applications; to amend the Criminal
Procedure Act, 1977, so as to insert a certain definition; to make provision for the rights of
a complainant of rape in bail proceedings; to further regulate the granting of bail to
persons charged with rape; to further regulate the circumstances in which certain criminal
proceedings shall not take place in open court; to extend the prohibition of the publication
of certain information relating to certain offences; to further regulate the admissibility of
evidence relating to similar offences by an accused; and to further regulate the
admissibility of evidence relating to the character of a complainant of rape or an offence of
an indecent nature; and to provide for matters incidental thereto.

(Signed by the President on 19 April 2000)

BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:-

Definitions
1. (1) In this Act, unless the context otherwise indicates-

“complainant”, in relation to an offence of a sexual or indecent nature, means a person towards

or in connection with whom any such offence is alleged to have been committed, irrespective of
whether or not that person has actually laid a complaint or gives evidence in the criminal
proceedings in question;

“perpetrator” means a perpetrator as referred to in section 2(1);

“sexual act” means –

(a) the insertion (to even the slightest degree) of the penis of a person into the vagina or anus or
mouth of another person; or

(b) the insertion of any other part of the body of a person or of any part of the body of an animal
or of any object into the vagina or anus of another person, except where such insertion of any
part of the body (other than the penis) of a person or of any object into the vagina or anus of
another person is, consistent with sound medical practices; carried out for proper medical
purposes; or

(c) cunnilingus or any other form of genital stimulation;

“vagina” includes any part of the female genital organ.

 (2) Any reference in any other law to rape shall, subject to the provisions of this Act, be
construed as including a reference to rape under this Act.

Rape
2. (1) Any person (in this Act referred to as a perpetrator) who intentionally under
coercive circumstances -

(a) commits or continues to commit a sexual act with another person; or

(b) causes another person to commit a sexual act with the perpetrator or with a third
person,

shall be guilty of the offence of rape;

(2) For the purposes of subsection (1) “coercive circumstances” includes, but is not
limited to -

(a) the application of physical force to the complainant or to a person other than the
complainant;

(b) threats (whether verbally or through conduct) of the application of physical force to
the complainant or to a person other than the complainant;

(c) threats (whether verbally or through conduct) to cause harm (other than bodily harm)
to the complainant or to a person other than the complainant under circumstances where it is not
reasonable for the complainant to disregard the threats;

(d) circumstances where the complainant is under the age of fourteen years and the
perpetrator is more than three years older than the complainant;

(e) circumstances where the complainant is unlawfully detained;

(f) circumstances where the complainant is affected by -

(i) physical disability or helplessness, mental incapacity or other inability

(whether permanent or temporary); or

(ii) intoxicating liquor or any drug or other substance which mentally incapacitates
the complainant; or

(iii} sleep,

to such an extent that the complainant is rendered incapable of understanding the nature
of the sexual act or is deprived of the opportunity to communicate unwillingness to
submit to or to commit the sexual act;
 (g) circumstances where the complainant submits to or commits the sexual act by
reason of having been induced (whether verbally or through conduct) by the
perpetrator, or by some other person to the knowledge of the perpetrator, to
believe that the perpetrator or the person with whom the sexual act is being
committed, is some other person;

(h) circumstances where as a result of the fraudulent misrepresentation of some fact

by, or any fraudulent conduct on the part of, the perpetrator, or by or on the part
of some other person to the knowledge or the perpetrator, the complainant is
unaware that a sexual act is being committed with him or her;

(i) circumstances where the presence of more than one person is used to intimidate
the complainant.

(3) No marriage or other relationship shall constitute a defence to a charge of rape under
this Act.

Penalties
3. (1) Any person who is convicted of rape under this Act shall, subject to the provisions
of subsections (2), (3) and (4), be liable-

(a) in the case of a first conviction -

(i) where the rape is committed under circumstances other than the circumstances
contemplated in subparagraphs (ii) and (iii), to imprisonment for a period of not
less than five years;

(ii) where the rape is committed under any of the coercive circumstances referred
to in paragraph (a), (b) or (e) of subsection (2) ofsection2, to imprisonment for a
period of not less than ten years;

(iii) where -

(aa) the complainant has suffered grievous bodily or mental harm as a result of
the rape;

(bb) the complainant -

(A) is under the age of thirteen years; or

(B) is by reason of age exceptionally vulnerable;

(cc) the complainant is under the age of eighteen years and the perpetrator is
the complainant’s parent, guardian or caretaker or is otherwise in a
position of trust or authority over the complainant;
 (dd) the convicted person is infected with any serious sexually transmitted
disease and at the time of the commission of the rape knows that he or she
is so infected;

(ee) the convicted person is one of a group of two or more persons

participating in the commission of the rape; or

(ff) the convicted person uses a firearm or any other weapon for the purpose of
or in connection with the commission of the rape,

to imprisonment for a period of not less than fifteen years;

(b) in the case of a second or subsequent conviction (whether previously convicted of

rape under the common law or under the common law or under this Act) -

(i) where the rape is committed under circumstances other than the
circumstances contemplated in subparagraphs, (ii) and {iii), to
imprisonment for a period of not less than ten years;

(ii) where the rape in question or any other rape of which such person has
previously been convicted was committed under any of the coercive
circumstances referred to in paragraph (a), (b) or (e) of subsection (2) of
section 2, to imprisonment for a period of not less than twenty years;

(iii) where the rape in question or any other rape of which such person has
previously been convicted was committed under any of the circumstances
referred to in subparagraph (iii) of paragraph (a), to imprisonment for a
period of not less than forty-five years.

(2) If a court is satisfied that substantial and compelling circumstances exist which justify
the imposition of a lesser sentence than the applicable sentence prescribed in subsection (1), it
shall enter those circumstances on the record of the proceedings and may thereupon impose such
lesser sentence.

(3) The minimum sentences prescribed in subsection (1) shall not be applicable in respect
of a convicted person who was under the age of eighteen years at the time of the commission of
the rape and the court may in such circumstances impose any appropriate sentence.

(4) If a minimum sentence prescribed in subsection (1) is applicable in respect of a

convicted person shall, notwithstanding anything to the contrary in any other law contained, not
be dealt with under section 297(4) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977):
Provided that, if the sentence imposed upon the convicted person exceeds such minimum
sentence, the convicted person maybe so dealt with in regard to that part of the sentence that is in
excess of such minimum sentence.
No rule as to incapacity of boy under fourteen years to have sexual intercourse shall
operate

4. (1) If, in any legal proceedings, the question is in issue whether a male person has had
sexual intercourse or has performed an act of a sexual nature with another person or is the father
of any child, such question shall be determined as a question of fact, and no presumption or rule
of law to the effect that a boy under the age of fourteen years is incapable of sexual intercourse,
shall operate.

(2) The criminal capacity of an accused under the age of fourteen years who is charged
with an offence of a sexual nature shall be determined in the same manner as the criminal
capacity of an accused under the age of fourteen years who is charged with any other offence.

Abolition of cautionary rule relating to offences of a sexual or indecent nature

5. No court shall treat the evidence of any complainant in criminal proceedings at which
an accused is charged with an offence of a sexual or indecent nature with special caution because
the accused is charged with any such offence.

Evidence of previous consistent statements

6. Evidence relating to all previous consistent statements by a complainant shall be

admissible in criminal proceedings at which an accused is charged with an offence of a sexual or
indecent nature: Provided that no inference may be drawn only from the fact that no such
previous statements have beer made.

Evidence of period of delay between commission of sexual or indecent act and laying of
complaint

7. In criminal proceedings at which an accused is charged with an offence of a sexual or

indecent nature, the court shall not draw any inference only from the length of the delay between
the commission of the sexual or indecent act and the laying of a complaint.

Evidence of psychological effects of rape

8. (1) Evidence of the psychological effects of rape shall be admissible in criminal

proceedings at which an accused is charged with rape (whether under the common law or under
this Act) in order -

(a) to show that the sexual act to which the charge relates is likely –

(i) to have been committed towards or in connection with the

complainant concerned;

(ii) to have been committed under coercive circumstances;

 (b) to prove, for the purpose of imposing an appropriate sentence, the extent of
the mental harm suffered by that complainant.

(2) In estimating the weight to be attached to evidence admitted in terms of

subsection (1), the court shall have due regard to -

(a) the qualifications and experience of the person who has given such evidence;
and

(b) all the other evidence given at the trial.

Special duties of prosecutor where accused is charged with sexual offence

9. In criminal proceedings at which an accused is charged with an offence of a sexual

nature, it shall be the duty of the prosecutor to consult with the complainant in such proceedings
in order -

(a) to ensure that all information relevant to the trial has been obtained from the
complainant, including information relevant to the question whether the
accused should be released on bail and, if the accused were so released,
whether any conditions of bail should be imposed; and

(b) to provide all such information to the complainant as will be necessary to

lessen the impact of the trial on the complainant.

Special duties of member of police in respect of bail applications where accused is charged
with sexual offence

10. In criminal proceedings at which an accused is charged with an offence of a sexual

nature, it shall be the duty of the member of the Namibian Police Force in charge of the
investigation -

(a) to forthwith inform the prosecutor in such proceedings of any reason to

believe that the complainant would be at risk if the accused is released on
bail and of any other investigations involving the accused (if any); and

(b) if bail has been granted to the accused, to forthwith, after becoming aware
thereof, inform that prosecutor of any failure by the accused to comply with
his or her conditions of bail.

Amendment of section 1 of Act 51 of 1977

11. Section 1 of the Criminal Procedure Act, 1977 (hereinafter referred to as the principal
Act), is hereby amended by the insertion in subsection (1) after the definition of “charge” of the
following definition”
 “complainant’, in relation to an offence of sexual or indecent nature, means a
person towards or in connection with whom any such offence, is alleged to have
been committed, irrespective of whether or not that person has actually laid a
complaint or gives evidence in the criminal proceedings in question;”.

Insertion of section 60A in Act 51 of 1977

12. The following section is hereby inserted in the principal Act after section 60:

“Rights of complainant in bail application where accused is charged with rape

60A. (1) A complainant of rape shall have the right -

(a) to attend any proceedings where the question is considered whether an

accused who is in custody on a charge of rape should be released on bail or,
if bail has been granted to the accused, whether any further conditions of bail
should be imposed under section 62 or whether any such conditions of bail
should be amended or supplemented under section 63; and

(b) to request the prosecutor in proceedings referred to in paragraph (a) to

present any information or evidence to the court that might be relevant to any
question under consideration by the court in such proceedings.

(2) If an accused is in custody on a charge of rape, the person in charge of the police
station or any other place where the accused is detained in terms of section 50 (1), or any other
person designated by such first-mentioned person, shall as soon as possible inform the
complainant concerned of -

(a) the place, date and time of the first appearance of the accused in court; and

(b) the rights of the complainant under subsection (l).

(3) If an accused who is in custody on a charge of rape intends to apply to the court for
bail on a date or at a time of which the complainant has not been otherwise informed in terms of
this section, the accused or his or her legal representative shall request the person referred to in
subsection (2) to inform the complainant accordingly, whereupon such person shall so inform the
complainant.

(4) The person who informs, or who is required to inform, the complainant in terms of
subsection (2) or (3), as the case may be, shall prepare an affidavit stating -

(a) whether the provisions of subsection (2) or (3) as the case may be, have been
duly complied with and, if they have not been so complied with, the reasons
for not complying with any such provision;

(b) the manner in which the complainant has been so informed; and
 (c) the date and time when the complainant has been so informed.

(5) An affidavit prepared in terms of subsection (4) shall be handed to the judge or
judicial officer presiding at the proceedings at which bail is considered, and such affidavit shall
form part of the record of such proceedings.

(6) If a complainant is present at a proceedings at which bail is considered in respect of

an accused who is in custody on a charge of rape, and such proceedings are postponed, the court
shall inform the complainant of the date and time to which such proceedings have been
postponed and of the complainant’s rights under subsection (1).

(7) If a complainant is not present at proceedings referred to in subsection (6), the court
shall enquire into the question whether the complainant has had knowledge of such proceedings,
and -

(a) shall, if it is satisfied that it is likely that the complainant has had knowledge
of such proceedings, direct that the matter be dealt with in the absence of the
complainant; or

(b) shall, if it is not so satisfied, postpone such proceedings in order to obtain the
presence of the complainant: Provided that, if it is in' the interests of justice
(with due regard to the interests of the complainant) that the matter be dealt
with forthwith, the matter may be dealt with in the absence of the
complainant.

(8) If a complainant is not present, as contemplated in subsection (7), the prosecutor in

such proceedings shall inform the complainant -

(a) where bail has been granted to the accused, of the granting of bail and the
conditions of bail imposed;

(b) where such proceedings have been postponed, of the date and time to which
such proceedings have been postponed and of the complainant’s rights under
subsection (1).

(9) The provisions of subsections (4) and (5) shall, with the necessary changes, apply in
respect of a notification given in terms of subsection (8)(b).”

Amendment of section 62 of Act 51 of 1977

13. Section 62 of the principal Act is hereby amended by the addition of the following
subsection, the existing section becoming subsection (1):

“(2) If an accused who is in custody on a charge of rape is released on bail, the court
shall, notwithstanding the provisions of subsection (1), add such further conditions of bail as
will, in the opinion of the court, ensure that the accused does not make contact with the
complainant concerned.”

Amendment of section 153 of Act 51 of 1977

14. Section 153 of the principal Act is hereby amended -

(a) by the deletion of paragraphs (a) and (b) of subsection (3);

(b) by the insertion after subsection (3) of the following subsections:

“(3A) Notwithstanding the provisions of subsections (1), (2), (5) and (6) but
subject to the provisions of subsection (3B), in criminal proceedings relating to a
charge that the accused committed or attempted to commit-

(a) any sexual or indecent act towards or in connection with any

complainant; or

(b) any act for the purpose of procuring or furthering the commission of a
sexual or indecent act towards or in connection with any complainant,

the court before which such proceedings are pending shall, to the extent
authorized thereto by the provisos to Article 12(1)(a) and (c) of the Namibian
Constitution, direct that any person whose presence is not necessary at such
proceedings, shall not be present at such proceedings, unless the complainant in
such proceedings, or, if he or she is a minor, his or her parent or guardian or a
person in loco parentis, otherwise requests.

(3B) Any person whose presence is not necessary at criminal proceedings

referred to in paragraphs (a) and (b) of subsection (3A), shall not be present at
such proceedings while the complainant in such proceedings is giving evidence,
unless such complainant, or, if he or she is a minor, his or her parent or guardian
or a person in loco parentis, otherwise requests.”;

and

(c) by the addition of the following subsection:

“(7) To the extent that the provisions of this section provide for a limitation
of the fundamental right to a public hearing and to the giving of judgment in
criminal proceedings in public hearing and to the giving of judgment in criminal
proceedings in public contemplated in paragraphs (a) and (c), respectively, of
Sub-Article (1) of Article 12 of the Namibian Constitution, in that they authorise
the exclusion of the public from criminal proceedings or any part thereof, such
limitation is enacted on authority of the said paragraphs (a) and (c).”
Amendment of section 154 of Act 51 of 1977

15. Section 154 of the principal Act is hereby amended –

(a) by the substitution of subsection (2) of the following subsection:

“(2) (a) Where a court under section 153(3) directs that any person or class of
persons shall not be present at criminal proceedings, no person shall publish
in any manner whatever any information which might reveal the identity of
any complainant in the proceedings: Provided that the presiding judge or
judicial officer may authorise the publication of such information if he or she
is of the opinion that such publication would be just and equitable: Provided
further that such information may be published with regard to any
complainant in the proceedings with regard to any complainant in the
proceedings if that complainant is eighteen years of age or older and has
authorised the publication of such information.

(b) Where a court in terms of section 153(3A) directs that any person shall not be
present at criminal proceedings or where any person is in terms of section
153(3B) not permitted to be present at criminal proceedings, no person shall
publish in any manner whatever any information which might reveal the
identity of any complainant in the proceedings: Provided that the presiding
judge or judicial officer may authorize the publication of such information if
he or she is of the opinion that such publication would be just and equitable:
Provided further that such information may be published with regard to any
complainant in the proceedings if that complainant is eighteen years of age or
older and has authorized the publication of such information.

(c) No person shall at any stage from the time of the commission of the relevant
offence to the appearance of an accused in a court upon any charge referred
to in section 153(3) or 153(3A) or at any stage after such appearance but
before the accused has pleaded to the charge, publish in any manner
whatever any information which might reveal the identity of the complainant
towards or in connection with whom such offence is alleged to have been
committed.”

(b) by the substitution for subsection (5) of the following subsection:

“(5) Any person who publishes any information in contravention of this section or
contrary to any direction or authority under this section or who in any manner
whatever reveals the identity of a witness in contravention of a direction under
section 153(2), shall be guilty of an offence and liable on conviction to a fine not
exceeding [five hundred rand] N$ 10 000 or to imprisonment for a period not
exceeding one year or to both such fine and such imprisonment,”; and

(c) by the addition of the following subsection:

 “(6) To the extent that the provision of this section provide for a limitation of the
fundamental rights contemplated in paragraph (a) of Sub-Article (1) of Article 21
of the Namibian Constitution, in that they authorize interference with a person’s
freedom to publish information relating to criminal proceedings, such limitation is
enacted on authority of Sub-Article (2) of the said Article.”

Insertion of section 211A in Act 51 of 1977

16. The following section is hereby inserted in the principal Act after section 211:

“Evidence during criminal proceedings of similar offences by accused

211A. (1) Subject to the provisions of subsection 2, in criminal proceedings

at which an accused is charged with rape or an offence of an indecent nature,
evidence of the commission of other similar offences by the accused shall, on
application made to it, be admitted by the court at such proceedings and may be
considered on any matter to which it is relevant: Provided that such evidence shall
only be so admitted if it has significant probative value that is not substantially
outweighed by its potential for unfair prejudice to the accused.

(2) Evidence of previous similar offences by an accused shall not be

admissible solely to prove the character of the accused:

(3) The court’s reasons for its decision to admit or refuse to admit evidence
of previous similar offences shall be recorded, and shall form part of the record of
the proceedings.”

Amendment of section 227 of Act 51 of 1977

17. Section 227 of the principal Act is hereby amended by the deletion of the words “or
as to the character of any woman upon or with regard to whom any offence of an indecent nature
has been committed,”

Insertion of section 227 A in Act 51 of 1977

18. The following section is hereby inserted in the principal Act after section 227:

“Evidence of sexual conduct or experience of complainant of rape or

offence of an indecent nature

227 A. (I) No evidence as to any previous sexual conduct or experience of a

complainant in criminal proceedings at which an accused is charged with rape or
an offence of an indecent nature, shall be adduced, and no question regarding
such sexual conduct or experience shall be put to the complainant or any other
witness in such proceedings, unless the court has, on application made to it,
 granted leave to adduce such evidence or to put such question, which leave shall
only be granted if the court is satisfied that such evidence or questioning -

(a) tends to rebut evidence that was previously adduced by the prosecution;
or

(b) tends to explain the presence of semen or the source of pregnancy or

disease or any injury to the complainant, where it is relevant to a fact in
issue; or

(c) is so fundamental to the accused’s defence that to exclude it would

violate the constitutional rights of the accused:

Provided that such evidence or questioning has significant probative value that is
not substantially outweighed by its potential prejudice to the complainant’s
personal dignity and right of privacy.

(2) No evidence as to the sexual reputation of a complainant in criminal

proceedings at which an accused is charged with rape or an offence of an indecent
nature, shall be admissible in such proceedings.

(3) Before an application for leave contemplated in subsection (1) is heard,

the court may direct that the complainant in respect of whom such evidence is to
be adduced or to whom any such question is to be put, shall not be present at such
application proceedings.

(4) The court’s reasons for its decision to grant or refuse leave under
subsection (1) to adduce such evidence or to put such question shall be recorded,
and shall form part of the record of the proceedings.

Short title and commencement

19. This Act shall be called the Combating of Rape Act, 2000, and shall come into
operation on a date to be fixed by the Minister of Justice by notice in the Gazette.

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